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House of Commons
Session 2008 - 09
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General Committee Debates

The Committee consisted of the following Members:

Chairmen: John Bercow, †Mr. Edward O'Hara
Creagh, Mary (Wakefield) (Lab)
Cunningham, Mr. Jim (Coventry, South) (Lab)
Gidley, Sandra (Romsey) (LD)
Hall, Patrick (Bedford) (Lab)
Horam, Mr. John (Orpington) (Con)
Merron, Gillian (Minister of State, Department of Health)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
O'Brien, Mr. Mike (Minister of State, Department of Health)
O'Brien, Mr. Stephen (Eddisbury) (Con)
Penning, Mike (Hemel Hempstead) (Con)
Pugh, Dr. John (Southport) (LD)
Slaughter, Mr. Andy (Ealing, Acton and Shepherd's Bush) (Lab)
Turner, Mr. Andrew (Isle of Wight) (Con)
Turner, Dr. Desmond (Brighton, Kemptown) (Lab)
Waltho, Lynda (Stourbridge) (Lab)
Wilson, Mr. Rob (Reading, East) (Con)
Chris Stanton, Committee Clerk
† attended the Committee

Public Bill Committee

Tuesday 16 June 2009


[Mr. Edward O’Hara in the Chair]

Health Bill [Lords]

10.30 am
The Chairman: Before we begin, I shall make a few preliminary announcements from the Chair. First, as a humanitarian gesture, hon. Members may remove their jackets. In return for that humanitarian gesture, I request that all hon. Members ensure that their mobile phones are either switched off or in silent mode during meetings of the Committee. There is a money resolution in connection with the Bill, and copies are available in the Room.
I remind hon. Members that adequate notice should be given of amendments. As a general rule, my fellow Chairman, Mr. Bercow, and I do not intend to call starred amendments, including any starred amendments that may be reached during an afternoon sitting of the Committee.
Turning to the business of the Committee, first, we shall be considering the programme motion, which is on the amendment paper. A debate may take place, but it is limited to half an hour. We will then proceed to a motion to report written evidence, which is also on the amendment paper. I hope that we can take that formally.
The Minister of State, Department of Health (Mr. Mike O'Brien): I beg to move,
(1) the Committee shall (in addition to its first meeting at 10.30 am on Tuesday 16 June) meet—
(a) at 4.00 pm on Tuesday 16 June;
(b) at 9.30 am and 1.00 pm on Thursday 18 June;
(c) at 10.30 am and 4.00 pm on Tuesday 23 June;
(d) at 9.30 am and 1.00 pm on Thursday 25 June;
(2) the proceedings shall be taken in the following order: Clauses 1 to 13, Schedule 1, Clauses 14 to 16, Schedule 2, Clauses 17 to 19, Schedule 3, Clauses 20 to 24, Schedule 4, Clauses 25 to 33, Schedule 5, Clauses 34 to 37, Schedule 6, Clauses 38 to 40, new Clauses, new Schedules, remaining proceedings on the Bill;
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 25 June.
I begin by welcoming you to the Chair of the Committee, Mr. O’Hara. I hope that under the expert tutelage of yourself and Mr. Bercow we can make good progress in handling this important Bill for the national health service. I hope that this resolution of the Programming Sub-Committee is passed by the Committee, so that we can meet and discuss in an orderly way the various clauses and schedules of the Bill.
Mr. Stephen O'Brien (Eddisbury) (Con): Thank you, Mr. O’Hara—with three apostrophes in the Room, we are going to have some fun. I join the welcome given to you and your co-Chairman by the Minister. We look forward to being guided and supervised under your experience and tutelage. I am sure that we will all endeavour to ensure that the Bill is given proper scrutiny.
As a matter of principle, the official Opposition have concerns about the programming of Bills and programme motions. Indeed, from time to time we have raised formal objections about the number of Bills that are not given adequate time to be scrutinised properly. None the less, on this occasion the eight scheduled sittings should be enough to give proper scrutiny to the Bill. We will do our best to ensure that we meet that timetable.
Question put and agreed to.
That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.—[Mr. Mike O’Brien.]

Clause 1

NHS Constitution
Mr. Stephen O'Brien: I beg to move amendment 1, in clause 1, page 1, line 7, leave out first ‘the’ and insert ‘any’.
The Chairman: With this it will be convenient to discuss amendment 2, in clause 1, page 1, line 8, leave out from ‘State’ to end and insert
‘and approved by each House of Parliament’.
Mr. O'Brien: Clause 1 effectively establishes the subject of the first chapter of the Bill, the NHS constitution. My two amendments are mutually reliant and make sense together, and I shall therefore seek to address both in one approach.
The amendments would change the initial phraseology to refer to “any” document and would remove the need to be date specific—they would remove the specificity from the Bill and seek to probe to some degree what the Government mean by this constitution. I hope, Mr. O’Hara, that you will give me a little latitude on these amendments as, I hope you agree, it will be useful for me to set out the questions of the constitution from this side of the House. That may enable us to move through later amendments more quickly. However, I will be guided by you to remain in order.
As the Committee goes through the Bill, time and again—as with so much Government legislation—we will meet regulations. The justification is always not to have too much detail in the Bill. How, therefore, does the Minister justify the specific reference to a document published on 21 January 2009? I hope that he will tell the Committee about analogous provisions in other legislation where a document is defined by its name and date but not its content.
The amendments also seek to reassert the power of the Houses of Parliament on the NHS constitution. When the Prime Minister launched his leadership bid, he said:
“One of my first acts as prime minister would be to restore power to Parliament in order to build
the trust of the British people in our democracy. Government must be more open and more accountable to Parliament”.
In his statement to the House last Wednesday, he said:
“we are removing ancient royal prerogatives and making the Executive more accountable to Parliament”.—[Official Report, 10 June 2009; Vol. 493, c. 797.]
He uses “we” and claims that the Executive are restoring power to Parliament, whereas that is, of course, a responsibility for the House.
The Prime Minister announced the review, which will be chaired by the Labour Chairman of the Public Administration Committee, the hon. Member for Cannock Chase (Dr. Wright). The review will consider how Parliament can strengthen its scrutiny of the Government and how control of Parliament’s daily business can be wrestled away from them and their Whips. Yet, the Government are bringing to the House legislation that enshrines something, the contents of which the House has no power over. In light of the claimed democratic accountability and the move to more open and transparent government, and particularly, taking into account the Government’s rhetoric on restoring power to Parliament, how can the Minister justify an undebated constitution? What has been published and put forward as a document is, effectively, a settled item.
Not only has Parliament had no opportunity to debate the contents of that constitution, but the constitution was launched in a closed signing ceremony at No. 10, where it was given legitimacy, if not force, by the hand of the Prime Minister—again, sidelining Parliament. Furthermore, if the amendment succeeds and the constitution gets the parliamentary debate that our NHS deserves and is amended as it should be, how will the Minister justify the cost of pulping all the documents that have been printed?
In addition, there is now an illogicality in the legislation. The Government rightly accepted the amendments put forward by my noble Friend Lord Howe in the other place that introduced clause 3(5). That means that the guiding principles of the constitution cannot be changed except by regulations made by the Secretary of State. However, if Parliament must be invoked to change the guiding principles—I argue that it should be—then surely it should be invoked to establish them. The precedent is dangerous, because, as I understand it, the Minister is saying, “What I say goes, and if you want to contradict me, you must change the law.” Where would we be if, for instance, Justice Ministers operated in a similar way? It might be right to debate this when we come to that clause, but will the Minister confirm that regulations made under clause 3(5) will be made under the negative resolution procedure? And will he tell us whether the Delegated Powers and Regulatory Reform Committee has advised on that power?
Government Back Benchers should not pass over that question lightly. They know that the guiding principles set out in the constitution are not the excellent principles of the NHS plan, which takes us back a good 10 years. Those are the principles that we have argued should be put forward as part of the constitution and which were implemented before the Prime Minister came up with his proposals.
If one compares the constitution with the principles in the NHS plan, the redaction of those principles was undertaken by the current Secretary of State for Health, who was a Health Minister back in 2006-07. Government Members know that that redaction, which the current Secretary of State was instrumental in ensuring took place, removed the key principle that
“Public funds for healthcare will be devoted solely to NHS patients”.
Should Parliament not have a say in that?
At the heart of the amendments lies the question of what is a constitution. Is it something which, in regard to a public body, or even a body which predominantly serves the public—the statutes of universities and Royal Colleges come to mind—should have some statutory democratic oversight of its content, even through a body such as the Privy Council, although I have to confess that that example does not necessarily help my argument? Or is it simply a useful noun that can be put at the head of a piece of paper, so that the Government of the day can get some relatively easy headlines, but which remains ontologically meaningless?
The question is a moot one, given the Prime Minister’s statement last week that he favours a written constitution for the country. So what precedents will we set as a Committee if we say that this House is perfectly content with constitutions that are solely the product of the Executive rather than of the legislature? Lest anyone think that the comparison is spurious, at a little over 3,000 words this NHS constitution is three quarters of the length of the original US constitution. That comparison was made by none other than Lord Naseby in the other place.
Then there is the further question of precedent-setting, which is why these amendments are so fundamental to the whole tenor of this part of the Bill. The last time the Government included a document of constitutional importance in legislation without giving either House the opportunity to debate and amend it, the then Minister, the right hon. Member for Leicester, East (Keith Vaz), told the House that the document had all the legal force of The Beano. The document was the European charter of fundamental rights. In 2005, it became clear that it was being referred to by the European Court of Justice in its judgments, but it is not yet justiciable in England and Wales within our jurisdiction pertaining to that part of the law. The rulings of the European Court of Justice are legally binding on England and Wales, and in Scotland and Northern Ireland, and thus it bites. That document is part of the Lisbon treaty, which the Government keep reminding us that they support, but which they are not prepared to give the country a referendum to endorse.
Turning to justiciability, if the constitution is meant to have some real effect, then one might envisage that, initially, people would be encouraged, even excited, by the prospect. They now have a means by which they can seek to enforce rights on access to, and the quality and type of, healthcare. Even if it can be argued that it does not go that far, that it does not actually create entitlements and that what is in place is already enshrined in statute, there is an issue about whether this is going to give rise to justiciability for what is known in the law—the Minister is a highly-reputed, qualified lawyer, so he will understand the importance of this—as remedy in equity. That involves things such as injunctive relief and any of the other specific enforcement processes that are possible by way of reference.
Of course, there is a special species of legal action, which is particularly known to the public sector— the question of judicial review. That relates to whether the constitution and the way in which it has been framed in the legislation will give rise to the opportunity for litigants to pray it in aid in support of any kind of judicial review of ministerial or other public office decisions. That leads to the question whether there would be not only injunctive relief, but any kind of compensatory provision for those enforced to take action that they did not wish to take, or to have to correct an action or inaction that they have found was not part of the administrative process that they should have adopted.
10.45 am
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Prepared 17 June 2009